Delhi District Court
State vs Shahnawaz on 8 December, 2023
IN THE COURT OF SH. SATISH KUMAR,
ADDITIONAL SESSIONS JUDGE - 03, NORTH DISTRICT
ROHINI COURTS, DELHI
Case No. 57681/2016
State V. Shahnawaj
S/o Mohd. Ishaq.
R/o D-1761, J.J. Colony, Bawana,
Delhi.
FIR No. 181/2014
U/s 307 IPC
Police Station Narela
Assigned to Sessions 23.05.2014
Charges framed on 20.08.2014
Arguments heard on 08.12.2023
Judgement pronounced on 08.12.2023
Decision Convicted for offence punishable
u/s 326 IPC
Appearance: Sh. Pankaj Bhatia, ld. Addl. PP for the State.
Sh. Sanjay Hooda, Ld. Amicus Curiae for
the accused.
JUDGMENT
BRIEF FACTS OF THE CASE :
1. Succinctly, the case of the prosecution is that on 10.02.2014, DD No.8/B was marked to SI Chetan who along with Ct.
Praveen went to M.V Hospital. In the said hospital, SI Chetan FIR No.181/2014 PS Narela State Vs. Shahnawaz. Page No.1 of 46 collected MLC number 670/2014 of injured Nasir and said patient was opined fit for statement but was referred to higher centre. In the said hospital, SI Chetan met Sarvari, who stated herself to be the witness of occurrence and accordingly, SI Chetan recorded her statement. On the basis of contents of MLC and statement made by Sarvari, SI Chetan prepared rukka and got the FIR registered. During investigation, IO SI Chetan prepared rough site plan of the place of occurrence. During investigation, IO SI Chetan effected the arrest of accused Shahnawaz and recorded his disclosure statement. During investigation, at the instance of accused Shahnwaz, the knife alleged to have been used in the commission of offence was recovered and seized. During investigation, IO had obtained subsequent opinion regarding weapon of offence and also obtained nature of injury on the MLC of injured Nasir. During investigation, IO had recorded the statement of witnesses and upon conclusion of investigation, charge sheet was filed for offences punishable u/s 307/201 IPC.
2. CHARGE:
The ld. Predecessor of this court, vide order dated 20.08.2014 framed the charge for offence punishable u/s 307 IPC against the accused and the accused pleaded not guilty and claimed trial.
FIR No.181/2014 PS Narela State Vs. Shahnawaz. Page No.2 of 46
3. PROSECUTION WITNESSES:
That, in order to prove its case, prosecution has examined 10 witnesses namely:
PWS Name of the Nature of the Documents proved witness witness PW1 Ms. Shabana Eye witness This witness was the eye witness and narrated the incident but has not supported the case of the prosecution and was cross examined on behalf of state.
PW2 Ms. Sarvari Eye witness This witness was the eye witness and supported the case of the prosecution.
PW3 Nasir Injured This witness is the injured
and had narrated the
occurrence and the manner
in which the accused
caused injuries to him
with knife and also
identified the knife as Ex.
P-1.
PW4 HC Om Duty Officer This witness has exhibited
FIR No.181/2014 PS Narela
State Vs. Shahnawaz. Page No.3 of 46
Prakash DD no.8-B and also
registered FIR Ex. PW-
4/B, made endorsement on
rukka Ex. PW-4/C and
also exhibited certificate
u/s 65-B Indian Evidence
Act as Ex. PW-4/D.
PW5 Dr. Vijay Medical witness This witness had given
Dhankar
subsequent opinion in
respect of weapon of
offence as Ex. PW-5/A.
PW6 Fanney Khan Eye witness This witness is the eye
witness of the occurrence
and narrated the
occurrence and also
identified the accused and
the manner in which the
accused has committed
offence.
PW7 Dr. Kavindra Medical witness This witness has exhibited
Kumar
the MLC of injured as Ex.
PW-7/A and also opined
the nature of injury as
grievous.
PW8 ASI Karambir Witness of This witness has joined
investigation.
the investigation and
exhibited the seizure
FIR No.181/2014 PS Narela
State Vs. Shahnawaz. Page No.4 of 46
memo Ex. PW-8/A, arrest
memo of accused Ex. PW-
8/B, personal search
memo of accused as Ex.
PW-8/C. Disclosure
statement of accused as
Ex. PW-8/D and the
sketch of knife Ex. PW-
8/F and seizure memo of
knife as Ex. PW-8/G.
PW9 SI Chetan Investigation This witness is the
Officer
investigation officer and
deposed about the
investigation conducted by
him and exhibited the
statement Ex. PW-2/A of
Sarvari, rukka Ex. PW-
9/A, rough site plan Ex.
PW-9/C and seizure
memoes and other memos
prepared during
investigation and also
obtained the subsequent
opinion anda also
FIR No.181/2014 PS Narela
State Vs. Shahnawaz. Page No.5 of 46
identified the knife as Ex.
P-1.
PW10 Constable Formal witness This witness accompanied
Praveen
IO to the hospital and got
the FIR registered.
4. STATEMENT OF ACCUSED U/S 313 CR.P.C:
All the incriminating evidence available on record recorded by the prosecution have been put to the accused and he denied the same and opted to lead defence evidence. However, no witness has been examined in defence by the accused.
5. ARGUMENTS:
Ld. APP for the State has submitted that the material witnesses have been examined and they all have support the case of the prosecution against the accused beyond all reasonable doubts and there are incriminating evidence against him and make a submission that the accused may kindly be convicted for the offence charged against him.
6. Ld. defence counsel Sh. Sanjay Hooda for accused Shahnawaz has submitted that there is no incriminating evidence against accused and the prosecution has not been able to connect the accused with commission of offence charged against him and FIR No.181/2014 PS Narela State Vs. Shahnawaz. Page No.6 of 46 the accused has been falsely implicated only to solve the present case and has nothing to do with the commission of offence and has submitted that the accused may kindly be acquitted from the charges framed against him.
7. PERUSAL OF RECORD:
The submissions of ld. APP for the State as well as ld. Counsel for the accused have been heard at length. The charge sheet as well as all the statements recorded by the IO during the course of the investigation and all the evidence recorded by the prosecution in the court to prove their case and the other material available on record has also been perused.
FINDINGS OF THIS COURT:
8. having heard the submissions made by Ld Addl. PP for the State as well as Ld. Defence counsel for the accused and after gone through the charge sheet and the evidence led by the prosecution, this court is of the considered view that ocular evidence/ eye witness count is the best evidence in any case but it is settled law that the testimonies of the eye witnesses are required to be carefully analyzed to test the reliability, credibility and truthfulness of the witness. Though minor FIR No.181/2014 PS Narela State Vs. Shahnawaz. Page No.7 of 46 infirmities and discrepancies are bound to occur in the normal course yet in a case where the various eye witnesses corroborate each other on material aspects connected with the offence, there is no reason to reject their testimonies.
9. That the entire case of the prosecution is mainly based upon the testimonies of Nasir (PW3) i.e. injured, Smt. Shabana (PW1) Smt. Saevari (PW2), Fanne Khan (PW6). Since the prosecution is placing its heavy reliance on the testimonies of aforesaid Nasir (PW3) i.e. injured, Smt. Shabana (PW1) Smt. Savari (PW2), Fanne Khan (PW6), it is therefore necessary for this Court to first determine whether what they have testified in favour of the prosecution and whether their testimonies are reliable and truthful.
10. It is settled law that in a case where the testimony of a witness is found to be reliable, the conviction can be based even on the sole testimony of such a truthful and trustworthy witness. The Hon'ble Apex Court has time and again determined the parameters on the basis of which the credibility/truthfulness of a witness can be ascertained. In the case of Bankey Lal vs. State FIR No.181/2014 PS Narela State Vs. Shahnawaz. Page No.8 of 46 of UP reported in AIR 1971 SC 2233 it was observed by the Hon'ble Apex Court that in a case where prosecution witnesses are proved to have deposed truly in all respects then their evidence is required to be scrutinized with care. Further, in the case of Kacheru Singh Vs. State of UP reported in AIR 1956 SC 546 it was observed by the Hon'ble Apex Court whether the witness should be or should not be believed is required to be determined by the Trial Court (Courts of Act). It is therefore evident that Eye witnesses' account would require a careful independent assessment and evaluation for their credibility which should not be adversely prejudged making any other evidence, including medical evidence, as the sole touchstone for the test of such credibility. The evidence must be tested for its inherent consistency and the inherent probability of the story;
consistency with the account of other witnesses held to be credit-worthy; consistency with the undisputed facts the 'credit' of the witnesses; their performance in the witness-box; their power of observation etc. Then the probative value of such evidence becomes eligible to be put into the scales for a cumulative evaluation. (Ref.: Krishnan Vs. State reported in FIR No.181/2014 PS Narela State Vs. Shahnawaz. Page No.9 of 46 AIR 2003 SC 2978).
That, applying the settled principles of law to the facts of the present case, coming first to the testimony of Nasir (PW3) i.e. the injured, according to him, Shabana is daughter of his sister namely Anwari who has been living in his neighbourhood alongwith her husband i.e. with accused Shahnawaz. He further deposed that accused Shahnawaz is in the habit of taking drugs and he also played gambles, as a result of which, there was a quarrel between accused Shahnawaz and Shabana on the matter of money. On 09/02/2014, accused Shahnawaz had lost Rs. 3,000/- in gambling and Shabana told the said fact to him. He also deposed that he tried to make accused Shahnawaz understand not to gamble but accused did not mend his ways and further quarreled with his niece Shabana and asked for more money from Shabana and even quarreled with his mother. He also deposed that on 09/10/2014, he tried to take accused Shahnawaz to the nearby Police Post but before he could take accused there, accused Shahnawaz took out a knife from his pocket and stabbed him in his stomach and also stabbed at his back as a result of which, he started bleeding. He also deposed FIR No.181/2014 PS Narela State Vs. Shahnawaz. Page No.10 of 46 that his sister Sarvari and her husband Fanney Khan were also present at his house at that time. He also deposed that they tried to save him and he was taken to Hospital in semi-conscious state and from there, he was shifted to another Hospital. He further deposed that he regained his full consciousness after two days and them Police recorded his statement. He also deposed that accused had stabbed him with intention to kill him. He has also identified the knife i.e. weapon of offence as Ex.P1 and deposed that the knife got bend during the incident. At the time of seeing the knife during his testimony, this witness got disturbed and started crying and stated, "APNI BEHAN AUR ISKI MA (MOTHER OF ACCUSED) KO BACHANE GAYA THA, MUJE CHAKU MAAR DIYA)".
11. That, during the cross-examination carried out by Ld. Defence counsel for accused, PW3 has stated that he was having mobile phone which was in working condition for the last 2-3 months and he had purchased the same 2-3 months back. He further deposed that the house of his niece Shabana is 2-3 house away from his house. He further deposed that on 09/02/2014 at FIR No.181/2014 PS Narela State Vs. Shahnawaz. Page No.11 of 46 around 9:00 p.m., Shabana came to his house and told him that accused had lost Rs.3,000/- in gambling. He further deposed that on the same day, at around 11:00 p.m. he was sleeping at his house and his wife and children were only present at his home. He further deposed that he knew about the quarrel between Shabana and accused since morning but he was not involving himself in the same. Both mother-in-law of Shabana and Shabana came to his house at around 8:00 - 9:00 p.m. on 09/02/2014. He further stated that at around 11:00 to 12:00 mid night, accused started knocking at his house but he did not open the door as he was afraid and sleeping. He also stated that the quarrel continued between his sister Sarvari & accused outside his house for about 3-4 hours i.e. from 12:00 mid night till 4:00 in the morning. Except him, his wife and children, nobody was present at his house. He further stated that his sister Sarvari, Jija Fanney Khan, mother of accused and accused were present outside his house and he did not have any phone call with Shabana and accused and he did not make any call to the Police. He further stated that at around 3:00 a.m. on 10/02/2014, mother of accused and accused knocked the door of his house and then he came outside his house and took accused to Police FIR No.181/2014 PS Narela State Vs. Shahnawaz. Page No.12 of 46 Post and were going alone to the Police Post. He further stated that he alongwith accused were walking 10 steps ahead from his sister and Jija and everything was visible at the time of incident. He further stated th at he was wearing blue colour shirt with yellow stripes, white colour vest and underwear. He further stated that his sister was blessed with five children and expired on 08/02/2014 & her sister Anwari was the owner of House No. B-749, J. J. Colony, Bawana, Delhi. He denied the suggestion that he wanted to grab the property of his sister Anwari or that he, Sarvari and her husband were pressuring the accused to sign the documents related to the property of his sister Anwari. He further stated that he was taken to the Hospital in the car with his sister Anwari and Jija Fanne Khan. He denied the suggestion that accused had not stabbed him or has been falsely implicated.
12. It is evident from the above that the witness Nasir (PW3) has duly identified accused Shahnawaz in the Court and has attributed specific role to him. He has specifically testified that it was the accused Shahnawaz who took out a knife from his pocket and stabbed him in his stomach and also stabbed at his back.
FIR No.181/2014 PS Narela State Vs. Shahnawaz. Page No.13 of 46
13. The witness Nasir (PW3) has been cross-examined at length.
Ld. Counsel for the accused Shahnawaz has vehemently argued that the witness Nasir has deposed falsely as he intended to grab the property of his sister and pressurized accused for signing the documents and when accused refused to sign the same, he has been falsely implicated and thus, his testimony is not reliable.
14. So far as the aforesaid arguments regarding the unreliability of testimony of PW 3 Nasir is concerned, this court is of the considered view that a witness cannot be disbelieved merely on the ground that accused has been falsely implicated due to property dispute. The quality and reliability of the testimony of a witness is to be ascertained by checking the veracity of the deposition of the said witness on the anvil of cross examination.
15. This court is also of the view that the witness Nasir (PW3) is the injured/eye witness and has stood by his version. The testimony of PW-3 is of sterling quality inasmuch as the testimony of PW-3 has its own efficacy and relevancy and the fact that he had sustained injuries on his body would show that he was present at the place of occurrence and had seen the FIR No.181/2014 PS Narela State Vs. Shahnawaz. Page No.14 of 46 occurrence by himself [Ref.: Mohar vs. State of UP reported in 2002 AIR (SC) 3279: 2002 Cri.L.J. 4310]. Evidence of injured eye witness cannot be discarded in toto on ground of criminal disposition towards accused or improbability of narrating the details of actual accident. More so, on perusal of evidence tested in light of broad probabilities it can be concluded that eye- witness are natural witnesses and they could not have concocted a baseless case against accused. Further, in the case of State of Madhya Pradesh Vs. Mansingh & Ors. reported in 2003 (3) Cri.C.C. 559: 2003 (10) SCC 414 the Hon'ble Supreme Court of India held that evidence of injured witness has greater evidentiary value, unless compelling reasons exist.
16. Now coming to the testimony of PW2 Sarvari, who is the sister of PW3 Nasir. She is also eye witness of the occurrence and has corroborated the testimony of her brother Nasir and has testified that the daughter of her real sister namely Shabana is residing in B-Block, Bawana, J. J. Colony in House No.1760/1761 with her husband namely Shahnawaz and her mother-in-law namely Hazar Tunisha. Shahnawaz is in the habit of taking drugs and played gambling also and he usually quarrels with her niece Shabana. Her sister Anwari, who is mother of Shabana had died FIR No.181/2014 PS Narela State Vs. Shahnawaz. Page No.15 of 46 on 08/02/2014 due to Cancer. She further deposed that on 09/02/2014, a quarrel took place between her niece Shabana and her husband namely accused Shahnawaz on the matter of money and at about 9:00 p.m., mother of accused Shahnawaz came to their house and told them that Shabana was being beaten up by accused Shahnawaz. Thereafter, she alongwith her brother Nasir reached the house of Shabana to save her but they did not find accused Shahnawaz there. On inquiry, Shabana told them that accused had taken Rs. 3,000/- from her and lost that money in gambling and he was again asking for more money from her and when she refused to give money, she was beaten up by him. Thereafter, they brought Shabana to their house on 09/02/2014. Thereafter, in the night itself, they had sent Shabana at House No. 749, J.J. Colony, Bawana, Delhi which is the house of deceased Anwari. After sometime, Shabana again returned to their house and told them that she has received a threatening call from accused Shahnawaz that if she did not return to his house, she would be beaten up. She further deposed that her brother Nasir called at No.100. Police reached the house of Nasir at B-891,J. J. Colony, Bawana and accused Shahnawaz was also called there who even quarreled with Shabana in FIR No.181/2014 PS Narela State Vs. Shahnawaz. Page No.16 of 46 presence of Police. She further deposed that they tried to make accused understand not to quarrel with Shabana and thereafter, Shabana was sent back to the house of deceased Anwari in the night itself and accused alongwith his mother returned to their house again and told them that the accused was even beating her also and that she would live in their house in the night to save herself. She further deposed that in that night itself, accused made a telephone call at the mobile phone of his mother to know about her whereabouts and when he came to know that she was at the house of Nasir, he came there in the night itself and started quarreling with his mother. At that time, he was in the house of Nasir. On this, her brother also told accused that he would be taken to the Police Post and on this accused took out a knife from his pocket and stabbed Nasir in his stomach and also stabbed twice at his back with the intention to kill him. She further deposed that her husband namely Faneh Khan tried to save his brother Nasir but he also received injuries in his hand with the knife. She raised alarm. Her husband somehow snatched the knife from the hands of accused and thereafter, accused ran away from the spot. Thereafter, she alongwith her husband and one Raja, who is FIR No.181/2014 PS Narela State Vs. Shahnawaz. Page No.17 of 46 their neighbour, took Nasir to M.B.Hospital where he was given first aid and further referred to Ambedkar Hospital. Thereafter, Police officials reached at Ambedkar Hospital but at that time, Nasir was not fit for giving statement. She also identified the weapon of offence i.e. knife as Ex. P1 with which accused had stabbed her brother Nasir.
17. This witness has also been cross-examined at length on behalf of defence. During cross-examination, this witness has deposed that the house of her brother Nasir and her niece are across the road. On 09/02/2014, she was at her house in the morning and at about 8:00 p.m., she went to her brother's house and quarrel took place at the house of her niece as mother-in-law of her niece came to call her at her house. She further stated that she and her brother Nasir both went to the house of accused with their sister-in-law Saira. She further stated that when they reached at the house of accused, only his wife was present and at that time, no quarrel took place, however glass of the windows were found broken and it was told by Shabana that accused had beaten her with the belt. She also deposed that Shabana told her that accused had taken Rs.5,000/- from the FIR No.181/2014 PS Narela State Vs. Shahnawaz. Page No.18 of 46 house as he has lost Rs. 3,000/- in the gambling. Thereafter, she returned to her house and her brother went to his house with Shabana and thereafter they called at No.100 from the mobile of her elder sister Gudiya. When they reached at the house of her brother Nasir, many people namely Gudiya (sister), Imran (Jija Ji) , Sagir (elder brother of Nasir), Saira (Bhabhi) and her five year old daughter Sahista were also present. She further stated that thereafter accused was called at the house of Nasir. Mother of Shabana expired one day before the present incident. She further stated that she was eldest among all the brother and sisters. Her sister Anwari was the owner of the property bearing no. B-749, J. J. Colony Bawana and was blessed with five children consisting of three sons and two daughters and that two daughters and one son of her sister are mentally retired. The husband of her sister namely Mohd. Jahangir is alive and he is living at the above mentioned house of her sister. Mohd. Jahangir was called at the house of her brother and accused came there at around 3:00 a.m. on 10/02/2014 and at that time, she, her husband Faneh Khan, mother-in-law of Shabana and her Bhabhi and one neighbour namely Raja were present there. She further stated that her husband is at Nasik. She further FIR No.181/2014 PS Narela State Vs. Shahnawaz. Page No.19 of 46 stated that when accused came to the house of Nazir, Nasir tried to beat the accused with the belt but on the request of mother of accused, Nasir did not beat the accused. She denied the suggestion that she and her brother wanted to grab the property of her sister Anwari and voluntarily stated that there is no property in the name of her sister. She further stated that the property is in the name of her Jija Ji Mohd Jahangir. She denied the suggestion that her husband and brother both beaten the accused. She stated that she alongwith her brother and husband walked 10 steps from the house of Nasir after taking the accused to Police Post and they were taking him to the Police Post forcefully and at that time, they were not having any mobile phone. She further stated that when the accused stabbed Nazir, Raja neighbour also came at the place of incident and at that time four persons were present there and that the Police post is at five minute walking distance from the house of Nasir. Thereafter, they took the Nasir to nearest Nursing Home for medical aid and after that her husband and Raja took Nasir to another Hospital in Ecco Car which belongs to one Babu who resides in next block of Nasir's house. She further stated that they did not make any call to the Police Station, however she FIR No.181/2014 PS Narela State Vs. Shahnawaz. Page No.20 of 46 went to Police Chowki which was found closed. She further deposed that accused stabbed Nasir in dark but she did not see the knife at the time of incident due to dark and the same was shining. Her husband bended the knife after snatching the same from the accused. Her brother was wearing white shirt and white vest and had wrapped pink towel on his waist. She denied the suggestion that her brother was not wearing white shirt and pink towel at the time of incident. She further deposed that the Police came directly to the Hospital on the call of Doctors and at that time Police did not ask anything from her, however statement of her husband was recorded by the Police. She denied the suggestion th at she alongwith her brother falsely implicating the accused in the present case or that accused never stabbed her brother or that she alongwith her husband and brother gave beatings to accused or that she alongwith her husband and brother wrongfully confined the accused in a room between 3:00-4:00 a.m. and threatened the accused to implicate him in a false case.
18. This court is also of the view that the witness Sarvari (PW2) is the eye witness and has stood by her version. Her testimony has its own efficacy and relevancy and the fact that she had seen the FIR No.181/2014 PS Narela State Vs. Shahnawaz. Page No.21 of 46 occurrence herself and has specifically deposed that it was accused Shahnawaz, who took out a knife from his pocket and stabbed on the abdomen as well as back of the Nasir with intention to kill him and her testimony reveals that she was present at the place of occurrence and had seen the occurrence by herself. Evidence of eye witness cannot be discarded in toto on ground of criminal disposition towards accused or improbability of narrating the details of actual incident. More so, on perusal of evidence tested in light of broad probabilities it can be concluded that eye-witness are natural witnesses and they could not have concocted a baseless case against accused. This witness stood firm in cross examination and has supported the case of the prosecution. This witness has narrated in detailed the manner in which the accused has committed the offence and has also identified the accused during her testimony and there is nothing to disbelieve her testimony and accordingly, this court has found the testimony of PW-2 Sarvari to be trustworthy, credible and believable and is also of sterling quality.
19. This court is also of the view that the testimony of PW-6 Sh.
Fanney Khan, who as per the case of the prosecution is also the FIR No.181/2014 PS Narela State Vs. Shahnawaz. Page No.22 of 46 eye witness of the occurrence, he has deposed that accused Shahnawaz is the son in law of his brother in law (sadu) and was married with Sabana. He also deposed that accused is drug addict and used to quarrel with Shabana. On 09.02.2014, accused took Rs.3000/- from Shabana and lost the said money in gambling and demanded more money from Sabana and on her refusal, accused had given her beatings. Thereafter, Shabana came to the house of Nasir and asked Nasir that she had been beaten by accused Shahnawaz. He had also deposed that Nasir along with Shabana reached at the house of accused but accused did not meet them. Thereafter, Nazir came back to his house. He also deposed that at about 4:00 am, Sabhana along with accused came to the house of Nasir and Sabhana told to Nasir that accused had beaten her again. He also deposed that upon this Nasir tried to take accused to the police post and during the process, accused had stabbed Nasir with knife in his stomach and he rushed there and noticed that accused had also given knife blows on the back side of Nasir and thereafter, he along with Nasir overpowered the accused and he took the knife from the hand of accused. He also deposed that he took Nasir to the clinic for first aid and from there he took Nasir to MV hospital FIR No.181/2014 PS Narela State Vs. Shahnawaz. Page No.23 of 46 from where doctor had referred Nasir to BSA Hospital where Nasir remained admitted for 15 days for treatment. This witness has also identified the knife as Ex. P-1.
20. This witness i.e PW-6 Fanney Khan had been cross examined at length on behalf of the defence. During cross examination, this witness stood firm and has deposed that the way to the chowki falls on the way of house of Nasir. He specifically deposed that the accused stabbed knife in the stomach of Nasir in his presence and he was at the distance of 40-50 meter when accused stabbed Nasir. He also deposed that he could not saved Nasir as he could not get time to reach for the help of Nasir. He specifically deposed that accused Shahnawaz within no time, took out the knife and did the act of stabbing. He denied the suggestion that he had not seen the incident or has been deposing falsely.
21. It is worth mentioning that the witness Fanney Khan (PW6) is the eye witness and he stood by his version. His testimony has its own efficacy and relevancy and the fact that he had seen the occurrence himself and has specifically deposed that it was FIR No.181/2014 PS Narela State Vs. Shahnawaz. Page No.24 of 46 accused Shahnawaz, who took out a knife from his pocket and stabbed on the abdomen as well as back of the Nasir and his testimony reveals that he was present at the place of occurrence and had seen the occurrence by himself. Evidence of eye witness cannot be discarded in toto on ground of criminal disposition towards accused or improbability of narrating the details of actual incident. More so, on perusal of evidence tested in light of broad probabilities it can be concluded that eye- witness are natural witnesses and they could not have concocted a baseless case against accused. This witness stood firm in cross examination and has supported the case of the prosecution. This witness has narrated in detailed the manner in which the accused has committed the offence and has also identified the accused during his testimony and also identified the weapon of offence i.e knife as Ex. P-1 and thus, there is nothing to disbelieve his testimony and accordingly, this court has found the testimony of PW-6 Fanney Khan to be trustworthy, credible and believable and also inspire the confidence.
22. That the testimony of PW1 Shabana, who is the wife of accused is concerned, she has deposed that on the day of incident, there FIR No.181/2014 PS Narela State Vs. Shahnawaz. Page No.25 of 46 was a quarrel between her and her husband as her husband was addicted to liquor and he also gambles and under the influence of liquor, her husband lost Rs.3,000/- in gambling. She asked her husband to give her money for preparing meals and her husband slapped her thrice. Her mother had already two days before the present incident. Having no other means to save herself, she called at No. 100. She was alone at that time and Police had reached their house in the night time and she told the incident to the Police. Police officials went away by telling her that they would see her husband on the next date. She went to the nearby house to save herself from her husband on that night. She returned to her house on the next morning because she had to send her daughter to the School and then she came to know that her maternal uncle had got sent her husband to Jail. She further deposed that the Police did not record her statement and she does not know as to what had happened.
23. Since PW-1 Smt. Shabana has not supported the case of the prosecution and she was cross-examined on behalf of State. During cross-examination, she denied the suggestion that her statement was recorded by the police or that accused had asked for money for gambling from her on 09/02/2014 and that she refused to pay the same and she did not state so before the FIR No.181/2014 PS Narela State Vs. Shahnawaz. Page No.26 of 46 Police or that on the intervening night of 9-10/02/2014, at about 4:00 A.M, her Mama Nazir had come to them to stop quarrel or that her husband told him that there was no need to intervene between them or that her husband started quarreling with Mama Nasir also or that when her Mama tried to take her husband to the Police Chowki, her husband took out a knife from his pocket and hit her Mama on his stomach and back or that thereafter, her husband ran away and she did not state so before the Police. She further denied the suggestion that her husband had caused injury on the person of Nasir with the help of knife to cause his death or that she is deposing falsely.
24. That during her cross-examination by the Ld. Counsel for accused she deposed to be correct that she has not seen accused causing injury on the person of her Mama. She further deposed that no knife was recovered in her presence from the accused She did not give any statement to the Police. She further deposed that her husband was not used to drink daily and that he never gave beatings to her prior to the present incident as referred by her. She has stated so that her husband lost Rs. 3,000/- in gambling as he has taken the said money from her. She did not know whether actually he lost the said money in FIR No.181/2014 PS Narela State Vs. Shahnawaz. Page No.27 of 46 gambling or not but he told her the same. She did not hand over anything to the Police.
25. Ld. counsel for the accused has strongly argued that PW-1 Smt. Sabhana has not supported the case of the prosecution and despite cross examination on behalf of the State, she has not supported the case of the prosecution and benefit of doubt must be given to the accused. On the other hand, Ld. Addl. PP for the State has argued that PW-1 Smt. Sabana is the wife of accused and the mere fact that she has not supported the case of the prosecution does not throw away the relevancy of testimonies of PW-3 Nasir who is the injured himself and PW-2 Smt. Sarvari, who is the eye witness of occurrence. This court has found force in the arguments of Ld. Addl. PP for the State inasmuch as the mere fact that PW-1 Smt. Shabana, who is the wife of accused has not supported the case of the prosecution does not throw away the evidentiary value of the testimonies of PW-3 Nasir who is the injured himself and PW-2 Sarvari who is the eye witness of the occurrence as well as the evidentiary value of PW-6 Fanney Khan who is also the eye witness of the occurrence.
26. This court, therefore, hold that the ocular evidence on record in FIR No.181/2014 PS Narela State Vs. Shahnawaz. Page No.28 of 46 the form of testimony of Smt. Sarvari (PW2) i.e eye witness and Sh. Fanney Khan (PW6) who is also the eye witness coupled with the testimony of PW-3 Nasir, who is injured himself corroborates the prosecution version and established the guilt of the accused Shahnawaz.
Medical Evidence:
27. The case of the prosecution is also based upon the medical evidence inasmuch as the injured Nasir (PW3) had received injuries upon his person and was rushed to the hospital where he was medically examined. In this regard, the prosecution has placed reliance upon the testimonies of PW-5 Dr. Vijay Dhankar and PW-7 Dr. Kavindra Kumar.
28. This court has also gone through the testimonies of the aforesaid witnesses and the medical record proved by the said witness. The MLC of the injured Nasir (PW3) which is Ex.PW7/A have been duly proved by Dr. Kavindra Kumar (PW7). As per the testimony of PW-7 Dr. Kavindra Kumar on local examination, patient Nasir found suffered stabbed injury over abdomen and stabbed injury on over back side upper part of body and the said patient was referred to SR Surgery for further management. PW-7 has specifically deposed that he had also opined the nature of injury suffered by injured Nasir to be FIR No.181/2014 PS Narela State Vs. Shahnawaz. Page No.29 of 46 grievous.
29. It is evident from the MLC of the injured that the injuries were opined to be grievous in nature. No cross examination has been offered to the witness. Thus, the prosecution has been able to prove that injured Nasir has suffered grievous injuries upon his person.
30. The record further reveals that PW-5 Dr. Vijay Dhankar had examined the parcels containing knife, shirt, baniyan and underwear and after examination, he opined that the injures on the body of Nasir as mentioned in MLC can be caused by knife examined. He also deposed that the cuts corresponding to the injuries on the body of the Nasir were present in the clothes examined. This witness has also exhibited his report as Ex. PW- 5/A. No cross examination has been offered to this witness and thus, the prosecution has been able to establish that the knife Ex.P-1 was used in the commission of offence by accused Shahnawaz.
31. This court is also of the view that PW-8 ASI Karambir and PW-
9 SI Chetan have deposed that on 01.02.2014 at the instance of secret informer, accused Shahnawaz was apprehended from 100 FIR No.181/2014 PS Narela State Vs. Shahnawaz. Page No.30 of 46 feet road, J.J. Colony, Bawana and was arrested vide arrest memo Ex. PW-8/B and he made a disclosure statement Ex. PW- 8/D and pursuant to disclosure statement, accused led them to D Block park and from a pit, lifted a knife and produced the same. Sketh Ex. PW-8/F of the said knife was prepared and the same was measured and the total length of said knife was found to be 22 cm, length of blade was 13 cm and length of handle was 9 cm. The said knife was sealed with the seal of CP and was seized vide memo Ex. PW-8/G. No cross examination was offered on behalf of defence to PW-9 SI Chetan and nothing material has come out in favour of defence from the cross examination of PW-8 SI Karambir. As per the provisions of Section 27 of Evidence Act, when any fact is deposed to as discovered in consequence of information received from a person accused of any offence, in the custody of a police officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved. Thus the requirement of law is that before the fact discovered in consequence of an information received from an accused is allowed to be proved, he (accused) needs to be in the custody of a police officer.
FIR No.181/2014 PS Narela State Vs. Shahnawaz. Page No.31 of 46
32. That the Section 3 of the Indian Evidence Act explains the meaning of the word 'Fact'. It provides that a fact means and includes: Anything, state of things, or relation of things, or capable of being perceived by the senses, any mental condition of which any person is conscious. It further provides five illustrations as to what would constitute a fact which are as under:
1. That there are certain objects arranged in a certain order in a certain place, is a fact
2. That a man heard or saw something, is a fact
3. That a man said certain words, is a fact.That a man holds a certain opinion, has a certain intention, acts in good faith, or fraudulently, or uses a particular word in a particular sense, or is or was at a specified time conscious of a particular sensation, is a fact.
4. That a man has a certain reputation, is a fact.
A conjoint reading of Section 3 and Section 27 of Evidence Act provides that as much of the statement as would relate to the discovery of fact connected with the accused would be admissible in evidence. The discovery of the fact is not only the discovery of the articles but also the discovery of the fact that the articles were kept by a particular accused at a particular place because in principle there is no difference between the statement made by the accused to the effect that "I will show FIR No.181/2014 PS Narela State Vs. Shahnawaz. Page No.32 of 46 you the person to whom I have given the articles" and the statement that "I will show you the place where I have kept the articles".
33. The Hon'ble Supreme Court in the case of K. Chinnaswamy Reddy Vs. State of A.P. reported in AIR 1962 SC 1788 had exhaustively discussed the scope and ambit of Section 27 of the Evidence Act had considered the question as to whether the statement of the accused to the effect that "he had hidden them (the ornaments)" and "would point out the place", where they were, is wholly admissible in evidence under S. 27 or only that part of it is admissible where he stated that he would point out the place but not that part where he stated that he had hidden the ornaments. In the above case the Ld. Sessions Judge had relied upon the judgment of Pulukuri Kotayya Vs. King-Emperor reported in 74 Ind App 65: AIR 1947 PC 67 where a part of the statement leading to the recovery of a knife in a murder case was held inadmissible by the Judicial Committee. It was observed by Hon'ble Supreme Court that in the above case (Pulukuri Kotayya) the Judicial Committee considered Section 27 of the Indian Evidence Act, as under:-
"...... Provided that when any fact is deposed to as discovered in consequence of information received from a person, accused of FIR No.181/2014 PS Narela State Vs. Shahnawaz. Page No.33 of 46 any offence, in the custody of a police officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved......
this section is an exception to Ss. 25 and 26 which prohibit the proof of a confession made to a police officer or a confession made while a person is in police custody unless it is made in immediate presence of a Magistrate. Section 27 allows that part of the statement made by the accused to the police "whether it amounts to a confession or not" which relates distinctly to the fact thereby discovered to be proved. Thus even a confessional statement before the police which distinctly relates to the discovery of a fact may be proved under S. 27. The Judicial Committee had in that case to consider how much of the information given by the accused to the police would be admissible under S. 27 and laid stress on the words "so much of such information........... as relates distinctly to the fact
34. thereby discovered" in that connection. It held that the extent of the information admissible must depend on the exact nature of the fact discovered to which such information is required to relate. It was further pointed out that "the fact discovered embraces the place from which the object is produced and the FIR No.181/2014 PS Narela State Vs. Shahnawaz. Page No.34 of 46 knowledge of the accused as to this, and the information given must relate distinctly to this fact....
........Information as to past user, or the past history of the object produced is not related to its discovery in the setting in which it is discovered.
This was exemplified further by the Judicial Committee by observing that the information supplied by a person in custody that 'I will produce a knife concealed in the roof of my house' leads to the discovery of the fact that a knife is concealed in the house of the informant to his knowledge and if the knife is proved to have been used in the commission of the offence, the fact discovered is very relevant. If, however, to the statement the words be added 'with which I stabbed A', these words are inadmissible since they do not relate to the discovery of the knife in the house of the informant......"
35. After considering the settled principles the Hon'ble Apex Court observed as under:
"......If we may respectfully say so, this case clearly brings out what part of the statement is admissible under S. 27. It is only that part which distinctly relates to the discovery which is admissible; but if any part of the statement distinctly relates to the discovery it will be admissible wholly and the court cannot say that it will excise one part of the statement because it is of a confessional nature. Section 27 makes that part of the statement FIR No.181/2014 PS Narela State Vs. Shahnawaz. Page No.35 of 46 which is distinctly related to the discovery. Admissible as a whole, whether it be in the nature of confession or not. Now the statement in this case is said to be that the appellant stated that he would show the place where he had hidden the ornaments. The Sessions Judge has held that part of this statement which is to the effect "where he had hidden them" is not admissible. It is clear that if that part of the statement is excised the remaining statement (namely, that he would show the place) would be completely meaningless. The whole of this statement in our opinion relates distinctly to the discovery of ornaments and is admissible under S. 27 of the Indian Evidence Act. The words "where he had hidden them" are not on a par with the words "with which I stabbed the deceased" in the example given in the judgment of the Judicial Committee. These words (namely, where he had hidden them) have nothing to do with the past history of the crime and are distinctly related to the actual discovery that took place by virtue of that statement. It is however urged that in a case where the offence consists of possession even the words "where he had hidden them" would be inadmissible as they would amount to an admission by the accused that he was in possession. There are in our opinion two answers to this argument. In the first place S. 27 itself says that where the statement distinctly relates to the discovery it will be admissible whether it amounts to a confession or not. In the FIR No.181/2014 PS Narela State Vs. Shahnawaz. Page No.36 of 46 second place, these words by themselves though they may show possession of the appellant would not prove the offence, for after the articles have been recovered the prosecution has still to show that the articles recovered are connected with the crime, i.e., in this case, the prosecution will have to show that they are stolen property. We are, therefore, of opinion that the entire statement of the appellant (as well as of the other accused who stated that he had given the ornament to Bada Sab and would have it recovered from him) would be admissible in evidence and the Sessions Judge was wrong in ruling out part of it. Therefore, as relevant and admissible evidence was ruled out by the Sessions Judge, this is a fit case where the High Court would be entitled to set asidethe finding of acquittal in revision though it is unfortunate that the High Court did not confine itself only to this point and went on to make rather strong remarks about other parts of the evidence....."
36. Later in the year 1969 the Three Judges Bench of the Hon'ble Supreme Court has in the case of Zaffar Hussain Dastagir Vs. State of Maharastra reported in 1969 (2) SCC 872 while dealing with the applicability of the provisions of Section 27 of the Indian Evident Act relied upon the case of K. Chinnaswamy Reddy Vs. State of A.P. observed as under:
"....in order that the Section may apply the prosecution must FIR No.181/2014 PS Narela State Vs. Shahnawaz. Page No.37 of 46 establish the information given by the accused led to the discovery of some fact deposed to by him and the discovery must be of some fact which the police had not previously learnt from other sources and that the knowledge of the fact was first derived from information given by the accused. The essential ingredient of the Section is that the information given by the accused must led to the discovery of the fact which is the direct outcome of such information; secondly only such portion of the information given as is distinctly connected with the said discovery is admissible against the accused and thirdly the discovery of the fact must relate to the commission of some offence..."
In the said case the Hon'ble Supreme Court further went to explain that:
"..... In a case where the accused is charged with theft of articles or receiving stolen articles states to the police "I will show you the articles at the place where I have kept them" and the articles were actually found there, there can be no doubt that the information given by the accused led to the discovery of a fact that is keeping of the articles by the accused at the place mentioned. However, the discovery of the fact deposed to in such a case is not the discovery of the articles but the discovery of the fact that the articles were kept by the accused at a FIR No.181/2014 PS Narela State Vs. Shahnawaz. Page No.38 of 46 particular place. It was observed that in principle, there is no difference between the above statement and that made by the accused in the case which in effect is that "I will show you the person whom I have given the diamonds exceeding 200 in number". The only difference between the two statements is that a "named person" is substituted for "the place" where the articles are kept. In neither case are the articles of the diamonds, in fact discovered. There can be no doubt that the portion of the alleged statement of the accused would be admissible in evidence......"
37. The Hon'ble Supreme Court has in the case of State (NCT of Delhi) Vs. Navjot Sandhu with Shaukat Hussain Guru Vs. State (NCT of Delhi) reported in AIR 2005 SC 3820 reinforced the above view when it observed that "discovery of fact" should be read with the definition of "fact" as contained in Section 3 of the Evidence Act which defines the "fact" as meaning and including anything, state of things or relation of things, capable of being perceived by the senses and also includes any mental condition of which any person is conscious (emphasis supplied). It was held that the provisions of Section 27 would apply whenever there is discovery which discovery amounts to be confirmatory in character guaranteeing the truth of the information given to which facts the police officer had no FIR No.181/2014 PS Narela State Vs. Shahnawaz. Page No.39 of 46 access earlier which also includes recovery of material object. The Hon'ble Court further observed that so much of the information as relates distinctly to the fact thereby discovered is admissible.
38. Applying the settled principles of law to the facts of the present case, this court is of the view that the investigating agency was not aware about the weapon of offence. It was the accused Shahnawaz. who disclosed about the said weapon of offence and got recovered the said weapon of offence. It was pursuant to his disclosure statement that the accused led the police team to the place of recovery of said knife and got recovered the said knife i.e weapon of offence. So far as the non joining of independent witnesses at the time of recovery of said knife, this court is of the view that that this will not be fatal to the case of the prosecution and it is common practice that the public persons are generally reluctant to join police proceedings and there is general apathy and indifference on the part of public to join such proceedings. This position of law was reiterated in Aslam and Ors. (Mohd.) Vs. State reported in 2010 III AD (Delhi) 133.
39. It was observed by Hon'ble High Court that reluctance of the citizens to join police proceedings is well known and needs to FIR No.181/2014 PS Narela State Vs. Shahnawaz. Page No.40 of 46 be recognized. It cannot be disputed that public does not want to get dragged in police and criminal cases and wants to avoid them, because of long drawn trials and unnecessary harassment. Similar view was taken in Manish vs. State, 2000 VIII AD (Scheduled Caste/ Scheduled Tribes (Prevention of Atrocities) Act, 1989) 29 and in A. Bhai Vs. State reported in AIR 1989 SC 696, wherein it was held that we cannot be oblivious to the reluctance of the common man to join such raiding parties organized by the police, lest they are compelled to attend police station and Courts umpteen times at the cost of considerable inconvenience to them, without any commensurate benefit.
40. Moreover, there is no reason to disbelieve the testimonies of police officials regarding recovery of knife at the instance of accused Shahnawaz. Their testimonies cannot be rejected merely because they happen to be police officers. As observed by the Hon'ble Supreme Court in Tahir Vs. State, reported in (1996) 3 SCC 338, no infirmity attaches to the testimony of police officials merely because they belong to the police force. It was observed in the case of Aner Raja Khima Vs. The State of Saurashtra reported in AIR 1956 SC 217 that the FIR No.181/2014 PS Narela State Vs. Shahnawaz. Page No.41 of 46 presumption that a person acts honestly and legally applies as much in favour of police officers as of others. It is not proper and permissible to doubt the evidence of police officers. Judicial approach must not be to distrust and suspect their evidence on oath without good and sufficient ground thereof.
41. In these circumstances, this court is of the considered view that the disclosure statement of the accused Shahnawaz Ex.PW8/D, to the extent relates to the recovery of weapon of offence Ex.P-1 is admissible in evidence under Section 27 of Evidence Act.
42. Charge under Section 307 Indian Penal Code:
In so far as the charge under Section 307 Indian Penal Code is concerned, this court is of the view that to constitute an offence under Section 307 IPC, it is sufficient if there is an intent coupled with some overt act in execution thereof. It is not essential that bodily injury capable of causing death should have been inflicted. Although the nature of injury actually caused may often give considerable assistance in coming to a finding as to the intention of the accused, such intention may also be deduced from other circumstances, and may even, in some FIR No.181/2014 PS Narela State Vs. Shahnawaz. Page No.42 of 46 cases, be ascertained without any reference at all to actual wounds. The section makes a distinction between the act of the accused and its result, if any. The Court has to see whether the act, irrespective of its result, was done with the intention or knowledge and under circumstances mentioned in the Section. An attempt in order to be criminal need not be the penultimate act. It is sufficient in law, if there is an intent coupled with some overt act in execution thereof.
43. The law is well settled to the effect that the intention can be inferred not only from nature of injuries caused, but also from other circumstances. In the instant case, the intention of the accused Shahnawaz is manifest from the fact that PW-3 Nasir tried to take accused Shahnawaz to the police post nearby but before he could take accused Shahnawaz to the said police post, accused Shahnawaz took out a knife from his pocket and stabbed him in his stomach and also stabbed at his back. PW-3 Sh. Nasir has specifically deposed in his testimony that the knife got bend during the incident and it was a knife with which the vegetables are generally cut. The overall impact of the testimonies of public witnesses are that accused Shahnawaz was aggrieved of the fact that PW-3 Nasir had been taking him to the police post and in the process, accused Shahnawaz caused FIR No.181/2014 PS Narela State Vs. Shahnawaz. Page No.43 of 46 injuries with knife on the person of PW-3 Nasir. The medical record corroborates the ocular version of the public witnesses including the testimony of PW-3 Nasir. The record further reveals that as per the testimony of PW-7 Dr. Kavindra Kumar, this witness has opined the nature of injury on the MLC of PW- 3 Nasir as grievous in nature.
44. In these facts and circumstances, this court is of the view that the prosecution has been able to prove and establish its case that the accused Shahnawaz caused grievous injuries upon the person of PW-3 Nasir but the intention of accused as borne out from the testimonies of public witnesses is not to cause the death of PW-3 Nasir but to teach him a lesson as to why PW-3 Nasir had been taking him to the police post, further in the testimony of PW-3, it has been reflected that PW-3 has specifically deposed that the knife used in the commission of offence by the accused was a knife with which vegetables are generally cut. So, this court is also of the considered view that the prosecution has been able to establish that accused has voluntarily caused grievous injuries on the person of PW-3 Nasir with sharp edge weapon i.e vegetable cutting knife. In view of the aforesaid discussion, coupled with the facts of the present case, the prosecution has not been able to prove that the FIR No.181/2014 PS Narela State Vs. Shahnawaz. Page No.44 of 46 accused could be held guilty for the commission of offence punishable u/s 307 IPC but the prosecution has been able to prove that the accused has voluntarily caused grievous hurt on the person of PW-3 Nasir and accordingly, accused Shahnawaz made himself liable for commission of offence punishable u/s 326 IPC.
45. That the prosecution has been able to prove the identity of the accused and the manner in which the offence has been committed, place of commission of the offence and the documents prepared. There is nothing which could shatter the veracity of the prosecution witnesses or falsify the claim of the prosecution. The prosecution witnesses have materially supported the prosecution case and the testimonies of the prosecution witnesses do not suffer from infirmity, inconsistency or major contradiction and the same are consistent and corroborative. The evidence of the prosecution witnesses is natural and trustworthy and corroborated by medical evidence and the witnesses of the prosecution have been able to built up a continuous link.
46. In these circumstances, this court is of the considered view that FIR No.181/2014 PS Narela State Vs. Shahnawaz. Page No.45 of 46 the prosecution has been able to prove and establish that the accused Shahnawaz voluntarily caused grievous injuries to PW- 3 Nasir by sharp edge weapon i.e vegetable cutting knife. Therefore, the accused Shahnawaz is held guilty for the offence u/s 326 IPC and accordingly stands convicted for the same.
47. Copy of this judgment be provided dasti to both the sides free of cost.
Announced in the open court on this 08th of December 2023 (Satish Kumar) Addl. Sessions Judge-3, North District, Rohini Courts, Delhi:08.12.2023 FIR No.181/2014 PS Narela State Vs. Shahnawaz. Page No.46 of 46